About three Court of Shanghai first intermediate people's court

"On Several Issues concerning the trial of cases of disputes in the contract of property insurance" the answer

The Shanghai first intermediate people's court2008Years of nearly two years the district court within the insurance cases investigation hearing the situation, and based on the typical problems in insurance cases were reviewed, the problems related to opinion, formulated the "contract dispute cases such as dry problem about property insurance trial solution" (hereinafter referred to as"Answer."), and an internal publication" District Court civil trial court "(AC2009No.1Period/Total No.9Period of) made in the form of a district court, the district court for reference in judicial practice.

Due to the Shanghai first intermediate people's court under the jurisdiction of the Pudong New Area people's court, the people's Court of Luwan District, Xuhui District people's court, the people's Court of Changning District, Minhang District people's court, the people's Court of Jinshan District, Nanhui District People's court, the people's Court of Fengxian District, Songjiang District people's Court of nine basic people's court, a property insurance companies registered within the area, Shanghai city the first intermediate people's court and district court hearing the case is related to the large number of each year and the property insurance contract disputes, the "answer" the introduction, has an important guiding significance for the judicial insurance contract dispute case handling these types, worthy of attention. The following will be on the "answer" relevant provisions are introduced and evaluation.

One, from the rights or obligations that are parties to an insurance contract has an insurable interest.

"Answer" No.1If the parties of the insurance contract, the insurance Department of the ownership of the subject matter, and can be directly identified enjoy the insurance benefits, if the parties of insurance contract loss of the subject matter of the insurance and the damage should bear civil liability or will affect its rights, can be also regarded as insurance interest.

This answer did not further differentiate the property insurance interest and liability insurance benefits, its scope should be limited to the insurance contract is not on the underwriting risk, underwriting profit made clear the terms of the contract, and should not be applied. The answer is not applicable to insured event has not occurred, moral hazard or there may be adverse selection.

Two, the subject matter of the insurance contract records with the actual subject matter is inconsistent, not easily deny the validity of insurance contracts.

"Answer" No.5The insurance contract records, subject matter and the actual subject matter is inconsistent, does not necessarily lead to the insurance contract shall be invalid, should consider the kind of mistakes will lead to the loss of insurance interests, should also consider such mistakes will lead to the subject matter of insurance does not exist or is difficult to ascertain, review the subject matter of the insurance the thing can determine should be combined with the insured, insurer by degree, fault in contracting and other provisions of the subject matter of the insurance of the description to be considered, not only related to whether the object exists as the only review basis, in addition, also should consider such mistakes will lead to increased risk in insurance.

The answer to the interests of the insured from the insured, view maintenance, to maintain the effectiveness of the insurance contract as far as possible, the effectiveness for the subject matter of the insurance records error of such major mistakes is also no longer be denied insurance contract, this is one of the important changes. But at the same time, the application of the answers, should also pay attention to the subject matter of a careful verification, to avoid the danger of not the subject matter of the insurance contract to assert the actual damage but not insured cargo insurance claims cases.

Otherwise agreed terms beyond three, terms of format can be regarded as a special clause, not easily deny the effect.

"Answer" No.7The thought of party, the insurance contract format terms stipulated in clause can be regarded as special clauses; first, not easily deny the effect of special terms, especially for special agreement violates the law management norms, should not be recognized as invalid, then the identification clause, should focus on the protection of the insured and the the insured, if the clause is the insurer unilaterally filed, and as a write insurance contract format terms, if the cause of the rights and obligations of both parties is not equal, then the insured, the insured shall have the right to apply for revocation of the; when there is a conflict clause and clause, generally should apply to the insured, the insured favorable terms.

This article answers the revocable in terms of the situation, may be more in line with the "terms of format contract law" fortieth stipulation invalid, such provisions shall identify invalid. If that such clauses as revocable clause, the parties make the revocation of the time limit for a year, and for the scheduled period, so the time when its cancellation right is the key to judge, what should be the contract of insurance (insurance) delivery of the insured, the insured date, or from the out of date, not clear to the answers.

Four, if the insurance contract have not agreed to the contrary, the beneficiary of a property insurance contract insurance claim to the insurer's rights.

"Answer" No.8A thought, this kind of problem is mainly for the property insurance contract and consumer loans, bank loans are often used as the first beneficiaries of insurance contracts, in the absence of contrary agreement, the Beneficiary requests insurance payment directly to the insurer's rights, the insurant, the insured or beneficiary shall have the right to ask the insurer to fulfill the rights. At the same time, if the lawsuit the beneficiary, while the insured, the insured clearly indicated that he did not agree with the direct claim right to insurance claims, the people's court shall dismiss the beneficiary claims.

This article answers the lack of adequate legal basis, especially for the property insurance contract beneficiary claims insurance claim lawsuit right established on the basis of the insured, the Insured agrees with the provisions. If the property insurance contract has been expressly agreed by the beneficiary has the right to claim to the insurer insurance claim, without the insured, the insured explicit consent, whether the beneficiary should get support for? If unable to obtain support, in fact, that the insured is a unilateral change of insurance contract rights and the insurer, which is contrary to the legal and legislative spirit.

Five, to further clarify the insurer exercises the right of subrogation scope, object and period.

"Answer" No.11The limited range, the exercise of the right of subrogation of the insurer to the insured have claims range, if the insured, the insured and others have reached a limit the scope of claim rights agreement, the insurer is corresponding also can make claims in the scope, if the insurer in signing insurance contract do not know how the foregoing limitations claims the scope of the agreement, the termination of the contract can be filed suit, and require the insured to return has been receiving insurance; in the presence of multiple responsibility main body condition, the insurer may choose either one or a plurality of main body rights advocate, without all the responsibility for the parties of the case are listed; the right of insurance subrogation shall apply the relevant provisions of the limitation of action, the general from the insurer pays the completion date, if the claim, the insurer and the insured to sign a written document of a transfer of rights, with the written document signed date.

The answer is not clear in the insurance contract shall be invalid or insurer error compensation, excess of loss situation, whether it will affect the subrogation right of the insurer. The effectiveness of the insurance contract and the insurer is correct for insurance claims, and will not increase the burden of responsibility, the people's court should not be included in the disputes of the insurer's subrogation hearing scope of claims. The specified starting time answer on the insurer exercises the right of subrogation of litigation prescription of the lack of legal basis, easily lead to limitation of malicious delay, the insurer exercising subrogation right system based on the insured and the responsibility of the basic legal relationship, and should therefore be aging proceedings for the basic legal relationship, and not because of the subject the exercise of claim right, the limitation of action is different.

In six, commercial three party insurance and compulsory motor vehicle insurance coexist, compulsory insurance payment priority should precede the commercial insurance.

"Answer" No.15A thought, in the commercial three party insurance and compulsory motor vehicle insurance coexist, if the loss amount is larger than the compulsory insurance limit, the insurer shall be compulsory insurance and commercial insurance inconsistent insurance matters before payment, such as the resulting loss compensation for compulsory insurance in other projects to reduce, is solved by commercial insurance be, otherwise that is unable to realize the compulsory insurance timely, comprehensive protection to the victims of the establishment of objective.